The City of Sunrise, Florida, tried to take a page from the CIA’s anti-transparency playbook last week when it responded to an ACLU public records request about its use of powerful cell phone location tracking gear by refusing to confirm or deny the existence of any relevant documents. And the state police are trying to get in on the act as well. We have written about the federal government’s abuse of this tactic—called a “Glomar” response—before, but local law enforcement’s adoption of the ploy reaches a new level of absurdity. In this case, the response is not only a violation of Florida law, but is also fatally undermined by records the Sunrise Police Department has already posted online.

A few weeks ago, the ACLU sent public records requests to 36 state and local Florida law enforcement agencies seeking information about their use of “cell site simulator” surveillance devices known as “Stingrays.” We were partly motivated by the discovery that the Tallahassee Police Department had argued in court to permanently seal court records discussing its Stingray use, apparently in deference to a nondisclosure agreement with the device’s manufacturer. That’s pretty offensive, but at least the new Tallahassee police chief has promised to investigate his department’s practices. The City of Sunrise’s position might be even more galling.

Today we sent a reply letter to Sunrise, explaining that it’s bad enough that the Glomar response has no basis under Florida law. Government agencies are required to respond to a public records request by searching for and releasing relevant documents, or explaining why individual documents fall within one of the narrow statutory exemptions to disclosure. Refusing to even confirm whether records exist violates the letter and spirit of the Florida Public Records Act.

But even more embarrassing for the city is that the Sunrise Police Department has already publicly acknowledged that it owns at least one Stingray. A document posted on the city’s public website reveals that in March 2013 the Police Department investigated purchasing a $65,000 upgrade to its existing Stingray device, as well as other related technology and services. (See here for an explanation of the abbreviations found on this form). An agency cannot acknowledge a fact in one context, but then refuse to confirm or deny the same information in response to a public records request. Sunrise’s response might be laughable if it weren’t such a bald violation of government transparency laws.

Sunrise is not the only entity attempting to conceal information about Stingray use. In response to an ACLU request, the Florida Department of Law Enforcement (the state police) released heavily redacted records revealing that the agency has spent more than $3 million on Stingrays, that it has signed agreements with a number of local and regional law enforcement agencies allowing them to use the FDLE’s devices, and that it has asked local agencies to sign non-disclosure agreements. (Florida newspapers have reportedsome of this information before, based on their own records requests). But the FDLE claimed that they don’t have to disclose any other responsive records, without telling us how many documents they withheld or why. We usually see this kind of response in the national security area; from a state police agency, it is particularly indefensible.

Today we also sent a reply letter to the FDLE explaining why its response is inadequate and asking it to release additional documents, including the text of the nondisclosure agreement and any policies and procedures it has setting rules about how and when Stingrays can be used.

In recent months the ACLU and the press have begun to uncover a disturbingpattern of police departments across the country deliberately concealing basic information about their use of Stingrays from the public. This technology raises serious questions under the Fourth Amendment. The public is entitled to full disclosure of records so it can engage in an informed debate about the legality and wisdom of these devices, and provide oversight of their use.

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Anonymous

When I lived in Florida (around 2009-2012) I was continually 'shadowed' by police offers on my commute. I would be driving along and suddenly one would get in front of me - often speeding very quickly from behind me to pass me then slow down significantly to stay ahead of me for the majority of my ride. It was local police offers from various areas but appeared to be coordinated as I was commuting through 3 counties.

If it happened once or twice every now and again, no big deal, but EVERY TIME was not a coincidence. It was clear to me then they were tracking cell phones (as this feat could not be consistently accomplished any other way) but WHY was another story. I am not a criminal, have never been arrested nor done anything to warrant an arrest, have a reasonable driving record, work hard, have an above average education, intellect and achievement. I'm a nice person and an occasional church goer - I live a quiet, unobtrusive life. Why was I being stalked?

Unfortunately, because it happened for several years it affected my well being and I started to have a distrust of authority which I had never had up to this point. It affected me due to its persistence and profound inappropriateness. I called to report it more than once and got the run around from low level employees who probably had no idea what was going on. I am sure the majority of police officers would use this technology for terrorists and violent criminals but there are many in the southern 3 counties of Southeast Florida who are using it for stalking & harassment purposes or perhaps due to mere incompetence. It is absolutely being abused and needs to be stopped immediately.

June 5, 2014

7:26 PM

Anonymous

Vigilant and Harris corp. making LEOs sign non disclosure agreements for being able to track phones and license plates so they can't tell anyone is illegal. Vigilant is allowing police to "track" your car via plates. Nobody said that was ok. SCOTUS already ruled tracking devices are illegal without a real warrant. None of this court order BS. Tell me how you don't need a warrant for a Tower Dump!